KingCast Motorsports -- Estate of Thompson v. Kawasaki Heavy Indus., 2013 U.S. Dist. LEXIS 17796

7/29/2019 KingCast Motorsports -- Estate of Thompson v. Kawasaki Heavy Indus., 2013 U.S. Dist. LEXIS 17796

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1 of 100 DOCUMENTS

THE ESTATE OF SCOTT W. THOMPSON, by the Personal Repre-sentatives, RANDY W. THOMPSON and VICKY J. THOMPSON, and

RANDY W. THOMPSON and VICKY J. THOMPSON, Individually,Plaintiffs, vs. KAWASAKI HEAVY INDUSTRIES, LTD., KAWASAKIMOTORS CORP., U.S.A., and OHLINS RACING AB, Defendants.

No. C 11-4026-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT

OF IOWA, WESTERN DIVISION

2013 U.S. Dist. LEXIS 17796

February 11, 2013, DecidedFebruary 11, 2013, Filed

COUNSEL: [*1] For Scott W Thompson, TheEstate of, Randy W Thompson, Personal Rep-resentative and Individually, Vicky J Thomp-son, Personal Representative and Individu-ally, Plaintiffs: Frederick W James, LEAD AT-

TORNEY, The James Law Firm, PC, DesMoines, IA; Douglas Richard Bradley, PROHAC VICE, Scott Eric Nutter, PRO HAC VICE,Shamberg, Johnson & Bergman, Chtd., Kan-sas City, MO.

For Kawasaki Heavy Industries, Ltd, Defen-dant: Kevin M Reynolds, LEAD ATTORNEY,Whitfield & Eddy, PLC, Des Moines, IA; Ter-rance M Miller, LEAD ATTORNEY, PRO HACVICE, Elizabeth Laudeman Moyo, PRO HACVICE, Porter, Wright, Morris & Arthur, LLP,Columbus, OH.

For Kawasaki Motors Corp USA, Defendant:Kevin M Reynolds, LEAD ATTORNEY, Whitfield& Eddy, PLC, Des Moines, IA; ElizabethLaudeman Moyo, PRO HAC VICE, Terrance M

Miller, PRO HAC VICE, Porter, Wright, Morris &Arthur, LLP, Columbus, OH.

For Ohlins Racing AB, Defendant: Jeffrey KMcGinness, LEAD ATTORNEY, PRO HAC VICE,

McGinness Law Firm, PLC, Iowa City, IA; PhilipA Burian, LEAD ATTORNEY, Lisa Stephenson,Simmons Perrine Moyer Bergman, CedarRapids, IA.

JUDGES: MARK W. BENNETT, U.S. DISTRICTCOURT JUDGE.

OPINION BY: MARK W. BENNETT

OPINION

MEMORANDUM OPINION AND ORDER RE-GARDING DEFENDANTS' MOTIONS FOR[*2] SUMMARY JUDGMENT

TABLE OF CONTENTS

________________________________________________________________________________

I. INTRODUCTIONA. Factual BackgroundB. Procedural Background


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II. LEGAL ANALYSISA. Standards For Summary JudgmentB. Claims No Longer At IssueC. The "Manufacturing Defect" Claims1. Arguments of the parties

2. "Manufacturing defect" standards3. Application of the standardsa. Departure from intended designb. CausationD. The "Design Defect" Claim Against Ohlins1. Arguments of the parties2. Component manufacturer liability for a "design defect"3. Application of the standardsE. Punitive Damages Claims1. Arguments of the parties2. Standards for punitive damages under Iowa law3. Application of the standardsIII. CONCLUSION

________________________________________________________________________________

In this diversity action under Iowa prod-ucts liability law, arising from a motorcycleaccident, I am asked to determine whetherthe plaintiffs are entitled to present to a juryboth their design defect and manufacturingdefect claims and, if so, whether the plaintiffscan assert either or both claims against themotorcycle manufacturer and the manufac-turer of an adjustable steering damper incor-porated into the motorcycle's steering mech-anism. These questions, and others, are pre-

sented on the defendants' motions for sum-mary judgment.

I. [*3] INTRODUCTION

A. Factual Background

As is my usual practice, I set forth hereonly those facts, disputed and undisputed,sufficient to put in context the parties' argu-ments concerning the defendants' motionsfor summary judgment. Unless otherwise in-dicated, the facts recited here are undis-

puted, at least for purposes of summaryjudgment. I will discuss additional factual al-legations, and the extent to which they are orare not disputed or material, if necessary, inmy legal analysis.

At about sunset on March 21, 2009, ScottThompson was riding his 2007 KawasakiNinja ZX-10R motorcycle in a convoy withtwo friends on county road K-22 in PlymouthCounty, Iowa. One of Thompson's friends,

Dave Lachioma, who was also riding a motor-cycle, led the convoy, the other friend,Michael Welter, followed in his car, and

Thompson brought up the rear on his motor-cycle. While driving northbound on K-22,

Thompson passed Welter, who was driving at60 to 65 mph. A few seconds after Thompsonpassed him, Welter observed the taillight of

Thompson's motorcycle wobble from side toside. Although Welter observed that it lookedlike Thompson was regaining control of his

motorcycle, Thompson was tossed from themotorcycle, [*4] slid on his back, feet first,across the highway, and landed in a ditch onthe west side of the highway. The motorcyclecontinued upright in the northbound lane foranother several hundred feet, before exitingthe highway on the east side. As a result ofthe accident, Thompson suffered a burst frac-ture at the T3-T4 vertebrae, causing paralysisbelow that level. Thompson died on Decem-ber 25, 2011.

Turning to essential background on mo-

torcycle performance, "kickback" occurswhen there is a disturbance to the motorcy-cle, such as a gap in the pavement mightcause, that creates handlebar vibrations."Convergence" occurs when kickback de-creases and disappears as the motorcyclecontinues to run. In contrast, "expansion" oc-curs when kickback continues to increase asthe motorcycle continues to run. Kickback ex-pansion, in turn, can turn into "wobble" of the


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motorcycle, but if kickback convergence oc-curs within an acceptable time frame, "wob-ble" is avoided. Wobble can make it difficultfor a rider to control the motorcycle.

The parties agree that a "steeringdamper" is a device with which a motorcyclecan be equipped for the purpose of minimiz-ing kickback and bringing about faster con-vergence--indeed, [*5] Kawasaki expresslyconcedes that a steering damper is a "safetydevice" for that purpose. In general, thehigher the dampening force in a steeringdamper, the quicker kickback can be damp-ened. A "dampening curve" provides the vari-ous dampening levels at a particular velocity(piston speed) for a particular steeringdamper. The dampening curves are gener-ated through laboratory tests by a hydraulic

machine referred to as a "dyno machine" (dy-namometer). A steering damper may be ad-

justable, that is, have different "click posi-tions," which adjust the dampening to riderpreferences. The plaintiffs allege that Thomp-son's motorcycle accident was the result ofthe defective design and/or manufacture ofhis 2007 Ninja ZX-10R motorcycle, becausethe steering damper on the motorcycle wasinsufficient and the motorcycle was not rea-sonably stable.

Defendant Kawasaki Heavy Industries,

Ltd. (KHI), a Japanese company, admits thatit is responsible for the design, developmen-tal testing, and manufacture of the 2007Kawasaki ZX-10R model motorcycle at issuein this case. Defendant Kawasaki MotorsCorp., U.S.A. (KMC), a Delaware corporationwith its principal place of business in Irvine,California, admits [*6] that it is responsiblefor the marketing of the motorcycle in ques-tion in the United States and the wholesalesale of the motorcycle in question to inde-pendent dealers in the United States. Theparties agree that the motorcycle in questionwas equipped with a steering damper, as anOriginal Equipment Manufacturer (OEM) com-ponent, designed and manufactured byOhlins Racing, AB (Ohlins), a Swedish com-pany with its principal place of business in Vsby, Sweden.

The parties agree that both the 2006model and the 2007 model Ninja ZX-10R mo-torcycles are part of Kawasaki's 1010 motor-cycle platform and that they have the identi-

cal chassis. Indeed, they agree that the onlydifference between the 2006 and the 2007model year Ninja ZX-10R is that the steeringdampers on the two models are different. Inover a year-and-a half of development of the

model year 2006 Ninja ZX-10R motorcycle,Kawasaki selected the Ohlins model SD-1790steering damper with specific dampening lev-els and values that Kawasaki believed pro-vided the optimal performance for the cus-tomer and the best fit for the 2006 modelyear. On March 10, 2006, however, Kawaskimade the decision to modify the steeringdamper on the 2007 Ninja [*7] ZX-10R by re-ducing the dampening value. This decisionfollowed a test ride in which the mountingbracket for the steering damper failed. Theparties agree that, on April 11, 2006, Mr.

Bjrkman, an Ohlins design engineer, wrotean e-mail to Kawasaki about the change, inwhich he stated, "I don't think you want verymuch less damping either, because there isalmost no function left." Plaintiffs' Appendixat 47, Exhibit 3. The parties dispute whetherMr. Bjrkman was stating a safety concern orsimply relaying performance concerns fromracing customers. Ultimately, Kawasaki se-lected the Ohlins model SD-1791 steeringdamper for the 2007 Ninja ZX-10R motorcy-cle to replace the SD-1790 steering damperthat had been used on the 2006 Ninja ZX-

10R. Although the parties dispute the precisevalues, they agree that the steering damperon the 2007 Ninja ZX-10R model had signifi-cantly less viscous dampening for the motor-cycle system (a maximum of 1750 newtonsat .6 meters per second) than the steeringdamper on the 2006 Ninja ZX-10R (a maxi-mum of either 4000 or 3600 newtons at .6meters per second).

B. Procedural Background

On March 16, 2011, prior to Scott Thomp-son's death, Randy W. Thompson and Vicky

[*8] J. Thompson, individually and as personalrepresentatives of Scott Thompson, filed aComplaint (docket no. 2), initiating this actionagainst various defendants, including KHI,KMC, and Ohlins, and alleging claims arisingfrom Scott Thompson's accident. The Thomp-sons' controlling pleading is now their FirstAmended Complaint (docket no. 48), filed onApril 23, 2012, after Scott Thompson's death.In their First Amended Complaint, the Thomp-


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sons assert claims of "strict liability productdefects," alleging both "design" and "manu-facturing" defects, "breach of implied war-ranty of fitness for a particular purpose," and"negligence" against KHI and KMC, in Counts

I, II, and III, respectively; similar claimsagainst Ohlins, in Counts IV, V, and VI, re-spectively; and a claim for "punitive dam-ages" against KHI, KMC, and Ohlins in CountVIII. 1 KMC and KHI filed separate Answers(docket nos. 49 and 50, respectively) on May4, 2012, and Ohlins filed its Answer (docketno. 52) on May 7, 2012, denying the claimsagainst them in the Thompsons' FirstAmended Complaint.

1 Count VII of the First AmendedComplaint was a negligence claim

against defendant MidAmerica Moto-plex, Inc., the business that sold [*9]Scott Thompson the motorcycle inquestion, but that defendant has sincebeen dismissed from this action.

On November 5, 2012, KMC and KHI, re-ferring to themselves collectively as"Kawasaki," filed their Motion For PartialSummary Judgment (docket no. 64), seekingsummary judgment in their favor on that partof the Thompsons' "product defects" claim al-leging a "manufacturing defect"--but not onthe part alleging a "design defect"--their

"breach of implied warranty" claim, their"negligence" claim, and their prayer for"punitive damages." On November 5, 2012,Ohlins's filed its Joinder In Motion For Sum-mary Judgment (docket no. 66), seeking sum-mary judgment in its favor on the sameclaims as Kawasaki, but accompanied by aseparate brief, statement of undisputedfacts, and appendix. After obtaining autho-rization and extensions of time to do so,Ohlins filed its November 27, 2011, Supple-mental (Amended And Substituted) MotionFor Summary Judgment (docket no. 71),

adding that Ohlins is also entitled to sum-mary judgment on the Thompsons' "designdefect" claim.

On December 18, 2012, the Thompsonsfiled separate Responses (docket nos. 73 and74, respectively) to Kawasaki's Motion ForPartial Summary [*10] Judgment and Ohlins'Supplemental (Amended And Substituted)Motion For Summary Judgment. Kawasaki

filed a Response (docket no. 75) to theThompsons' statement of additional facts anda Reply (docket no. 76) in further support ofits Motion For Partial Summary Judgment onDecember 28, 2012. After an extension of

time to do so, Ohlins filed a Reply (docket no.80) to the Thompsons' statement of addi-tional facts.

By Order (docket no. 82), dated January11, 2013, I granted the Thompsons leave tofile a supplemental response to the defen-dants' Motions For Summary Judgment,based on their assertion that they had onlyrecently obtained additional information rele-vant to their responses. On January 14, 2013,the Thompsons filed their Supplemental Op-position To Ohlins's Motion For Summary

Judgment (docket no. 84), and their Supple-

mental Opposition To Kawasaki's Motion ForPartial Summary Judgment (docket no. 85).On January 21, 2013, Kawasaki filed its Reply(docket no. 86) and its Response To Plaintiffs'Supplemental Statement Of Additional Mate-rial Facts To Defendant Kawasaki (docket no.87), in response to the Thompsons' Supple-mental Opposition to Kawasaki's Motion ForPartial Summary Judgment. [*11] Also on

January 21, 2013, Ohlins filed its Reply, de-nominated its Response To Plaintiffs' Supple-mental Brief In Opposition To [Its] Motion ForSummary Judgment (docket no. 88), in fur-

ther support of its Motion For Summary Judg-ment.

The parties requested oral arguments onthe summary judgment motions. My crowdedschedule has not permitted the timely sched-uling of such oral arguments, and I find thatthe parties' written submissions on the issuespresented are sufficient to resolve the pend-ing motions without oral arguments. There-fore, I will resolve the motions based on theparties' written submissions.

II. LEGAL ANALYSIS

A. Standards For Summary Judgment

Summary judgment is only appropriatewhen "the pleadings, depositions, answers tointerrogatories, and admissions on file, to-gether with affidavits, if any, show that thereis no genuine issue of material fact and thatthe moving party is entitled to a judgment asa matter of law." FED. R. CIV. P. 56(c) (empha-


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sis added); see Woods v. DaimlerChryslerCorp., 409 F.3d 984, 990 (8th Cir. 2005)("Summary judgment is appropriate if view-ing the record in the light most favorable tothe nonmoving party, there are no genuine

issues of material [*12] fact and the movingparty is entitled to judgment as a matter oflaw."); see generally Celotex Corp. v. Catrett,477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L.Ed. 2d 265 (1986). As the Eighth Circuit Courtof Appeals has explained,

"On a motion for summaryjudgment, 'facts must be viewedin the light most favorable to thenonmoving party only if there is agenuine dispute as to thosefacts.'" Ricci v. DeStefano, 557

U.S. 557, 129 S. Ct. 2658, 2677,174 L. Ed. 2d 490 (2009) quotingScott v. Harris, 550 U.S. 372,380, 127 S. Ct. 1769, 167 L. Ed.2d 686 (2007) (internal quota-tions omitted). "Credibility deter-minations, the weighing of theevidence, and the drawing of le-gitimate inferences from thefacts are jury functions, not thoseof a judge." Reeves v. SandersonPlumbing Prods., Inc., 530 U.S.133, 150, 120 S. Ct. 2097, 147 L.

Ed. 2d 105 (2000), quoting An-derson v. Liberty Lobby, Inc., 477U.S. 242, 255, 106 S. Ct. 2505,91 L. Ed. 2d 202 (1986). The non-movant "must do more than sim-ply show that there is somemetaphysical doubt as to the ma-terial facts," and must come for-ward with "specific facts showingthat there is a genuine issue fortrial." Matsushita Elec. Indus. Co.v. Zenith Radio Corp., 475 U.S.574, 586-87, 106 S. Ct. 1348, 89L. Ed. 2d 538 (1986). [*13]"'Where the record taken as awhole could not lead a rationaltrier of fact to find for the non-moving party, there is no genuineissue for trial.'" Ricci, 129 S. Ct.at 2677, quoting Matsushita, 475U.S. at 587, 106 S. Ct. 1348.

Torgerson v. City of Rochester, 643 F.3d

1031, 1042-43 (8th Cir. 2011) (en banc).Summary judgment is particularly appropri-ate when only questions of law are involved,rather than factual issues that may or maynot be subject to genuine dispute. See, e.g.,

Cremona v. R.S. Bacon Veneer Co., 433 F.3d617, 620 (8th Cir. 2006).

B. Claims No Longer At Issue

Kawasaki seeks summary judgment on allbut the Thompsons' "design defect" claim--that is, on the Thompsons' "manufacturingdefect," "breach of implied warranty," "negli-gence," and "punitive damages" claims--andOhlins joined in Kawasaki's motion on thoseclaims, then asserted its own substituted mo-tion for summary judgment on those claimsand the "design defect" claim against it. In

their Responses (docket nos. 73 and 74, re-spectively), the Thompsons expressly do notresist summary judgment on their "breach ofimplied warranty" and "negligence" claims,because they believe that Iowa law recog-nizes only a single claim [*14] for liability forproduct defects, pursuant to the RESTATEMENT(THIRD) OF TORTS, PRODUCT LIABILITY (RESTATEMENT(THIRD)), encompassing design and manufac-turing defects and negligence principles.

They note that they intend to pursue their"design defect" claim, which Kawasaki hasnot challenged, but Ohlins now has chal-

lenged, their "manufacturing defect" claim,which Kawasaki and Ohlins have both chal-lenged, and their "punitive damages" claimwhich Kawasaki and Ohlins have also bothchallenged.

As the Iowa Supreme Court most recentlyexplained, in Scott v. Dutton-Lainson Co.,774 N.W.2d 501 (Iowa 2009),

In Wright [v. Brooke Group Ltd.,652 N.W.2d 159 (Iowa 2002)], weadopted the Restatement (Third)of Torts: Products Liability sec-tions 1 and 2 (1998) [hereinafter

Third Products Restatement].Wright, 652 N.W.2d at 169. The

Third Products Restatement rec-ognizes that "strict liability is ap-propriate in manufacturing defectcases, but negligence principlesare more suitable for other defec-tive product cases." Id. at 168.


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Therefore, Wright adopted astandard of risk-utility analysis,which incorporates a considera-tion of reasonableness, for designdefect claims, but chose to "label

a claim [*15] based on a defec-tive product design as a designdefect claim without reference tostrict liability or negligence." Id.at 169.

Scott, 774 N.W.2d at 504 (footnote omitted)(also noting that "Wright rejected the cate-gorical labels of strict liability or negligencein the context of design defects").

The court in Scottalso observed,

Comment c of the Third Prod-ucts Restatement section 2 notesthat "[a]lthough Subsection (a)calls for liability without fault [inmanufacturing defect claims], aplaintiff may seek to recoverbased upon allegations and proofof negligent manufacture." ThirdProducts Restatement 2 cmt. c,at 18; see also Third Products Re-statement 2 cmt. n, at 36. Ifmanufacturing defect claims arebrought under a negligence the-

ory, the categorical strict liabilityexception in rule 5.407 would notapply.

Scott, 774 N.W.2d at 505 n.3. This observa-tion suggests that a "negligent manufactur-ing defect" claim is still tenable under Iowalaw, even after Wright. 2 Similarly, the IowaSupreme Court observed in Scott,

Wrightheld . . . that a claim forbreach of implied warranty underIowa Code section 554.2314(2)

(c) "requires proof of a productdefect as defined in Products Re-statement section 2." [*16]Wright, 652 N.W.2d at 181-82.

Therefore, a breach of warrantyclaim will require proof of thestandard for either a manufactur-ing defect, a design defect, or afailure to warn.

Scott, 774 N.W.2d at 505 n.2. This observa-tion suggests that a "breach of implied war-ranty" claim may also be tenable under Iowalaw, even after Wright.

2 I have previously noted thatRESTATEMENT(THIRD) 2(a) authorizes botha "strict liability" and a "negligence"claim based on a "manufacturing de-fect" and identifies some of the differ-ences and similarities between them:

As the RESTATEMENT (THIRD)explains, in comment n to 2, the strict liability ruleset forth in subsection (a)does not require risk-utility

assessment, but a negli-gence claim does.RESTATEMENT (THIRD) 2(a)cmt. n. However, "[w]hatmust be shown under ei-ther [a negligence or strictliability] theory is that theproduct in question did, infact, have a manufacturingdefect at the time of salethat contributed to causingthe plaintiff's harm." Id.

Thus, if the [product] did

not have a manufacturingdefect at the time of sale,then [the plaintiff's] manu-facturing defect claimwould fail under either anegligence or a strict liabil-ity theory.

Nationwide Agribusiness Ins. Co. v.SMA Elevator Constr., Inc., 816 F. Supp.2d 631, 663 (N.D. Iowa 2011).

Nevertheless, [*17] where the Thomp-

sons concede that summary judgment is ap-propriate on their "breach of implied war-ranty" and "negligence" claims under Iowalaw, I will grant the defendants' Motions ForSummary judgment on the Thompsons'"breach of implied warranty" and "negli-gence" claims.

C. The "Manufacturing Defect" Claims


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More analysis is required of claims still indispute. Among those claims are the Thomp-sons' "manufacturing defect" claims againstboth Kawasaki and Ohlins. I will first summa-rize the parties' arguments for and against

summary judgment on the "manufacturingdefect" claims.

1. Arguments of the parties

Kawasaki argues that, although theThompsons have alleged that the motorcyclecontained a manufacturing defect--that is,that the motorcycle departed from its in-tended design, because the steering damperfailed to provide sufficient dampening and/orthe motorcycle was unstable--the Thompsonshave failed to produce any evidence that themotorcycle deviated appreciably from

Kawasaki's intended design. 3 More specifi-cally, Kawasaki argues that, even though ithas produced design drawings and explainedthe specifications for the motorcycle, the

Thompsons' experts have not identified anyway in [*18] which the steering damper orthe motorcycle deviated from the intendeddesigns. Kawaski points out that its represen-tative testified in depositions that the steer-ing damper was designed to have a maxi-mum dampening force of 1.5 kilonewtons at .6 meters per second with a tolerance of 30%to account for variation in each motorcycle.

Kawasaki asserts that neither of the Thomp-sons' engineering experts has opined thatthe steering damper on Scott Thompson'smotorcycle departed from that intended de-sign; rather, they have both opined that themaximum dampening level of the steeringdamper was insufficient--a "design defect" is-sue. Similarly, Ohlins argues that the Thomp-sons have pointed to nothing in admissibleevidence showing that the steering damperdeparted from its intended design or failed toconform to the manufacturer's specifications.

3 Kawasaki states the pertinent ele-ment of a "manufacturing defect" claimunder Iowa law to be that "'the motor-cycle was defectively manufactured be-cause it deviated in some appreciablemanner from Kawasaki's intended de-sign,'" purportedly quoting Wright v.Brooke Group, Ltd., 652 N.W.2d 159,178 (Iowa 2002), with emphasis addedby Kawasaki. See Kawasaki's [*19]

Brief (docket no. 64), 5. Interestingly,the purportedly quoted language ap-pears nowhere on page 178 of theWright decision, on any other page ofthe Wrightdecision, or, so far as I have

been able to determine, anywhere inany published decision by any state orfederal court. Nor does it appear inRESTATEMENT(THIRD) 2, concerning "cate-gories of product defect," the com-ments or illustrations to that section, orthe summaries of any cases interpret-ing that section.

In their original Responses, the Thomp-sons asserted that information relevant totheir "manufacturing defect" claims had re-cently been produced, so that they requiredadditional time to respond to the defendants'

Motions For Summary Judgment on theseclaims. After being granted leave to supple-ment their Responses, the Thompsons arguethat the steering damper (SD1791) on Scott

Thompson's 2007 Ninja ZX-10R did have amanufacturing defect, because it failed tomeet the functional specification for left-rightbalance tolerance of no more than 30% asestablished by Ohlins, that the left-right bal-ance (compression-rebound balance) plays arole in the overall stability of the motorcycle,and that, because the subject damper was[*20] out of specification on the "minus" side,

the manufacturing defect caused the subjectsteering damper to have even less dampen-ing force than specified by Kawasaki andOhlins. They point to testing data from Dri-nan Products on October 12, 2012, and fromRE Suspension in North Carolina on Novem-ber 19, 2012, which they assert show left-right balance differences in the subjectdamper well in excess of 30%.

In reply, Kawasaki asserts that nothing inthe record shows that it called for the func-tional specification on which the Thompsonsrely. Kawasaki also argues that, as Ohlins hasexplained, the functional specification was aninternal testing tolerance, not a design "spec-ification," and that it related to "click" posi-tion 15, but the Thompsons' own expert hasopined that the steering damper on Scott

Thompson's motorcycle was set at "click" po-sition 5, 11, or 17, making a purported "spec-ification" for "click" position 15 irrelevant. Inarguments that Kawasaki also adopts, Ohlins


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asserts that, even if the "tolerance" is ac-cepted as a design "specification," the Octo-ber 2012 and November 2012 test data onwhich the Thompsons rely are not evidencethat the subject damper was out of tolerance,

[*21] because the dynamometers used inthose tests were never "correlated" to thedynamometer used by Ohlins to conduct thetesting that the Thompsons now assert cre-ated the manufacturing specification. Ohlinsalso points out that the subject steeringdamper was not new, had been in an acci-dent, had been subjected to numerous ex-pert tests, and had been exposed to Midwest-ern winter weather conditions, all of whichcan affect performance. Ohlins points outthat no expert has opined that, when thetesting data was properly "correlated" to the

Ohlins dynamometer, it showed that thedamper was outside of the 30% left-right bal-ance tolerance. Ohlins also asserts that the

Thompsons have failed to generate a gen-uine issue of material fact, based on admissi-ble evidence, that any manufacturing defectwas a proximate cause of Scott Thompson'saccident, relying only on one expert's conclu-sory assertion that the purported manufac-turing defect "aggravated the problem of thesubject motorcycle having insufficient steer-ing damping and played a role in contributingto cause the accident."

2. "Manufacturing defect" standards

As the Eighth Circuit Court of Appeals hasnoted,

"Courts and the Restatement ofTorts [*22] distinguish betweendesign defects and manufactur-ing defects." St. Paul Fire & Ma-rine Ins. Co. v. Lago Canyon, Inc.,561 F.3d 1181, 1190 n. 18 (11thCir. 2009); see also Parish v.

Jumpking, Inc., 719 N.W.2d 540,

542 n. 2 (Iowa 2006) ("Designand manufacturing defects are,of course, significantlydifferent...."). "[T]he distinction isbetween an unintended configu-ration [a manufacturing defect],and an intended configurationthat may produce unintendedand unwanted results [a designdefect]." Harduvel v. Gen. Dy-

namics Corp., 878 F.2d 1311,1317 (11th Cir. 1989).

Linden v. CNH America, L.L.C., 673 F.3d 829,

834 (8th Cir. 2012).More specifically, the Iowa Supreme Court

has defined a "manufacturing defect," withinthe meaning of Iowa products liability law, asfollows: "'A product 'contains a manufactur-ing defect when the product departs from itsintended design even though all possiblecare was exercised in the preparation andmarketing of the product.'" Scott, 774N.W.2d at 505 (quoting RESTATEMENT (THIRD) 2(a), and also noting that "[t]his definition isconsistent with strict liability because fault isassessed regardless of the exercise of all

possible care," citing Wright, 652 N.W.2d at168). [*23] Under this definition of a "manu-facturing defect," the Iowa Supreme Courthas explained, "Clearly, . . . a plaintiff maynot recover from [a product manufacturer]under a manufacturing defect theory whenthe [product used] by the plaintiff w[as] inthe condition intended by the manufacturer."Wright, 652 N.W.2d at 178 (noting that sev-eral courts had reached the same conclusionunder the principles of the RESTATEMENT (SECOND)OF TORTS). Comment c to RESTATEMENT (THIRD) 2also clarifies some of the requirements for

proof of a "manufacturing defect" claim, asfollows:

c. Manufacturing defects. Asstated in Subsection (a), a manu-facturing defect is a departurefrom a product unit's designspecifications. More distinctlythan any other type of defect,manufacturing defects disappointconsumer expectations. Commonexamples of manufacturing de-fects are products that are physi-

cally flawed, damaged, or incor-rectly assembled. In actionsagainst the manufacturer, under

prevailing rules concerning allo-cation of burdens of proof the

plaintiff ordinarily bears the bur-den of establishing that such adefect existed in the productwhen it left the hands of themanufacturer.


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RESTATEMENT(THIRD) 2, cmt. c [*24] (emphasisadded).

In light of Wright and other authorities,the Eighth Circuit Court of Appeals has con-cluded that, under Iowa law, "essential ele-ments" of a manufacturing defect claim are(1) the intended design of the product, and(2) how the manufacturing of the particularproduct at issue departed from the intendedproduct design, and that court has held that,when a plaintiff fails to prove one or both ofthese elements, summary judgment in favorof the defendant is appropriate. DepositorsIns. Co. v. Wal-Mart Stores, Inc., 506 F.3d1092, 1095 (8th Cir. 2007). I have also ob-served, in a prior case involving a "manufac-

turing defect" claim under RESTATEMENT(THIRD) 2(a), as adopted by the Iowa Supreme Court,that "'[w]hat must be shown under either [anegligence or strict liability] theory is that theproduct in question did, in fact, have a manu-facturing defect at the time of sale that con-tributed to causing the plaintiff's harm.'" Na-tionwide Agribusiness Ins. Co. v. SMA Eleva-tor Constr., Inc., 816 F. Supp. 2d 631, 663(N.D. Iowa 2011) (quoting RESTATEMENT (THIRD) 2, cmt. n, with emphasis added here). Thus,there is a "causation" requirement for a strictliability "manufacturing [*25] defect" claim.

This conclusion is consistent with the IowaSupreme Court's recognition, well before itadopted RESTATEMENT (THIRD) 2, that, even instrict liability cases, including products liabil-ity cases, the plaintiff must prove that thedefendant's actions were a proximate causeof the plaintiff's damages. See, e.g., Hagen v.Texaco Ref. & Mktg., Inc., 526 N.W.2d 531,537 (Iowa 1995).

It is not surprising, then, that Iowa CivilJury Instruction No. 1000.1 states the ele-ments of a manufacturing defect claim, inlight of Wright and RESTATEMENT (THIRD) 2(a),as follows:

In order to recover on a claimthat defendant's product containsa manufacturing defect, theplaintiff must prove all of the fol-lowing propositions:

1. The defendant sold or dis-tributed the (product);

2. The defendant was en-gaged in the business of sellingor distributing the (product);

3. The (product) at the time itleft defendant's control containeda manufacturing defect that de-parted from its intended design,in one or more of the followingways: (Set out particulars as sup-ported by the evidence);

4. The manufacturing defectwas a proximate cause of plain-tiff's damages; and

5. The amount of damages.

If the plaintiff [*26] has failedto prove any of these proposi-

tions, the plaintiff is not entitledto damages. If the plaintiff hasproved all of these propositions,the plaintiff is entitled to dam-ages in some amount. [If an affir-mative defense is submitted,delete the second sentence andinsert the following: If the plaintiffhas proved all of these proposi-tions, then you will consider thedefense of as explained in In-struction No. _.]

Iowa Civil Jury Instruction No. 1000.1. Nor is itsurprising that I have previously found that"this formulation of the elements of a manu-facturing defect claim is consistent with theformulation of the claim in Wright andRESTATEMENT (THIRD) 2(a)." Nationwide

Agribusiness Ins. Co., 816 F. Supp. 2d at 663n.8.

3. Application of the standards

The "fighting issues" on Kawasaki's andOhlins's Motions For Summary Judgment on

the Thompsons' "manufacturing defect"claims are whether or not the Thompsonscan prove--or, for now, generate genuine is-sues of material fact on--the third and fourthelements of such a claim, as set out justabove. I will consider those elements, in turn.

a. Departure from intended design

To defeat summary judgment on this


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claim, on the basis of the [*27] third ele-ment, the Thompsons must generate genuineissues of material fact that the steeringdamper on Scott Thompson's 2007 Ninja ZX-10R motorcycle, or the motorcycle itself, at

the time it left the particular defendant's con-trol, contained a manufacturing defect thatdeparted from its intended design, in one ormore ways. Iowa Civil Jury Instruction No.1000.1; Nationwide Agribusiness Ins. Co.,816 F. Supp. 2d at 663 n.8. As the Eighth Cir-cuit Court of Appeals has suggested, this ele-ment has two prongs, which are both "essen-tial elements" of the claim: (1) the intendeddesign of the product, and (2) how the manu-facturing of the particular product at issuedeparted from the intended product design.Depositors Ins. Co., 506 F.3d at 1095.

In their First Amended Complaint, theThompsons allege that the "manufacturingdefects" in Scott Thompson's 2007 Ninja ZX-10R motorcycle were that the steeringdamper failed to provide sufficient dampen-ing and/or that the motorcycle was unstable.See First Amended Complaint, Count I, 27(a) and (b); Count IV, 62(a). Even intheir Supplemental Responses to Kawasaki'sand Ohlins's Motions For Summary Judgment,specifically addressing the "manufacturing[*28] defect" claims, the Thompsons havenot put at issue any "intended design" of the

2007 Ninja ZX-10R motorcycle other than the"intended design" of the steering damper,nor have they identified any way in whichScott Thompson's 2007 Ninja ZX-10R motor-cycle departed from its intended design, suchthat it was "unstable," other than the allegeddeparture of the steering damper from the in-tended design for that part. Because the

Thompsons have not come forward with spe-cific facts showing that there is a genuine is-sue for trial on the intended design of the2007 Ninja ZX-10R motorcycle as to any as-pect other than the steering damper, or any

departure from the intended design in ScottThompson's 2007 Ninja ZX-10R motorcycleapart from the steering damper, the defen-dants are entitled to summary judgment onany part of the Thompsons' "manufacturingdefect" claims against them relating to any"manufacturing defect" in the motorcycleother than in the steering damper. See Torg-erson, 643 F.3d at 1042-43.

Turning to the alleged "manufacturing de-fect" in the steering damper, I must first con-sider whether the Thompsons have gener-ated genuine issues of material fact on theintended design of the steering [*29]

damper. Depositors Ins. Co., 506 F.3d at1095 (concluding that proof of departurefrom intended design requires proof of both(1) the intended design of the product, and(2) how the manufacturing of the particularproduct at issue departed from the intendedproduct design); see also Iowa Civil Jury In-struction No. 1000.1 (stating the pertinent el-ement as departure from intended design);Nationwide Agribusiness Ins. Co., 816 F.Supp. 2d at 663 n.8 (same). Kawasaki hasconceded that its representative, Mr. Okabe,testified in depositions that the steering

damper was designed to have a maximumdampening force of 1.5 kilonewtons at .6 me-ters per second with a tolerance of 30% toaccount for variation in each motorcycle. SeeKawasaki's Brief at 6 (citing Okabe's Deposi-tion, 54:3-55:4, 60:11-61:2, and Kawasaki'sAppendix, Exhibit E, pp. 110, 111). Ohlins dis-putes that the Thompsons have identifiedany intended design of the steering damper,because Ohlins asserts that the functionalspecification for left-right balance toleranceof no more than 30%, on which the Thomp-sons rely, was not a "design specification" at

all, but an internal testing tolerance. Ohlinsalso argues that the "left-right [*30] balancetolerance," if it was a "design specification,"related to "click" position 15, but the Thomp-sons' own expert has opined that the damperon Scott Thompson's motorcycle was set at"click" position 5, 11, or 17, making a pur-ported "specification" for "click" position 15irrelevant.

Although I believe that Kawasaki andOhlins probably have the better jury argu-ment, I nevertheless conclude that the

Thompsons have generated genuine issues

of material fact that Kawasaki and Ohlins hada "design specification," that is, an "intendeddesign" for the steering damper that requireda maximum dampening force of 1.5 kilonew-tons at .6 meters per second with a toleranceof 30% to account for variation in each mo-torcycle, as Mr. Okabe testified and Kawasakiconceded, and a left-right balance toleranceof no more than 30%. That is, from the evi-dence in the record cited by the Thompsons,


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viewed in the light most favorable to theThompsons, a rational trier of fact could findthat these were design specifications for thesteering damper, not merely testing toler-ances. Torgerson, 643 F.3d at 1042-43. Al-

though Ohlins contends that the purportedleft-right balance tolerance of no more than30% was [*31] only an internal testing stan-dard and that such a standard specified for"click" position 15 is "irrelevant," where the

Thompsons' expert has opined that the steer-ing damper on Scott Thompson's motorcyclewas set at "click" position 5, 11, or 17, I con-clude that these challenges go to the weightof the evidence of a "design specification,"not to the existence of evidence of a "designspecification" or "intended design," as a mat-ter of law.

I come to a very different conclusion withregard to the prong of this element that re-quires proof of how the manufacturing of theparticular product or component at issue de-parted from the intended product design. De-

positors Ins. Co., 506 F.3d at 1095. First,however, I do not agree with the defendantsthat evidence that the subject steeringdamper was not new, had been in an acci-dent, had been subjected to numerous ex-pert tests, and had been exposed to Midwest-ern winter weather conditions, all of whichcan affect performance, proves beyond dis-

pute that the subject steering damper wasnot defective; rather, such evidence onlygenerates genuine issues of material factabout whether the testing data shows thatthe subject steering damper departed [*32]from the intended design at the time of theaccident.

On the other hand, I do agree with the de-fendants that the Thompsons have failed togenerate a genuine issue of material fact ona defect in the particular steering damper onScott Thompson's motorcycle, despite thetesting data on which they rely, where thereis no showing that the dynamometers used inthose tests were ever "correlated" (I thinkmeaning "calibrated") to the dynamometerused by Ohlins to conduct the testing thatthe Thompsons now assert created the de-sign specification, and no expert has opinedthat, when the testing data is properly corre-lated to the Ohlins dynamometer, it showedthat the damper was outside of the 30% left-

right balance tolerance. Without a baselinefor comparison, from calibration of the test-ing equipment used by Drinan Products andRE Suspension to Ohlins's testing equipment,which purportedly established the intended

design, or correlation of the Drinan Productsand RE Suspension data to Ohlins's testingdata, testing data are merely numbers, notproof of anything. See, e.g., American & For-eign Ins. Co. v. General Electric Co., 45 F.3d135, 139 (6th Cir. 1995) (rejecting expert evi-dence, in part, [*33] because the expert wasunsure whether equipment had been cali-brated). Furthermore, "[c]onclusory experttestimony is not sufficient to defeat a motionfor summary judgment." Northwest Airlines,Inc. v. Phillips, 675 F.3d 1126, 1134 (8th Cir.2012) (citing Herrero v. St. Louis Univ. Hosp.,

109 F.3d 481, 485 (8th Cir. 1997)).Therefore, the defendants are entitled to

summary judgment on the Thompsons'"manufacturing defect" claim on the groundthat the Thompsons' have failed to generategenuine issues of material fact on the ele-ment requiring proof that the subject steer-ing damper departed from the intended de-sign of such steering dampers.

b. Causation

In addition or in the alternative, I con-

clude that the defendants are entitled tosummary judgment on the Thompsons'"manufacturing defect" claims, because the

Thompsons have failed to generate genuineissues of material fact on the "causation" ele-ment of such a claim. Iowa Civil Jury Instruc-tion No. 1000.1 (requiring proof that the"manufacturing defect" was a proximatecause of the plaintiff's damage); Nationwide

Agribusiness Ins. Co., 816 F. Supp. 2d at 663n.8 (same). The Thompsons assert that oneof their experts, Mark Ezra, has concluded[*34] that the manufacturing defect in thesteering damper, regarding left-right damp-ening tolerances, contributed to cause Scott

Thompson's accident. As Ohlins contends,this expert's causation conclusion is based ona faulty premise, making it insufficient togenerate a genuine issue of material fact on"causation," because of the lack of calibra-tion of the testing equipment or correlation ofthe testing data from which the expert pur-ports to find a manufacturing defect. Again,


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"[c]onclusory expert testimony is not suffi-cient to defeat a motion for summary judg-ment." Northwest Airlines, Inc., 675 F.3d at1134.

Therefore, both Kawasaki and Ohlins areentitled to summary judgment on the Thomp-sons' "manufacturing defect" claims on theground that the Thompsons' have failed togenerate genuine issues of material fact onthe "causation" element of such a claim.

D. The "Design Defect" Claim AgainstOhlins

Ohlins also seeks summary judgment onthe Thompsons' "design defect" claim againstit. The Thompsons argue that they have gen-erated genuine issues of material fact that

Ohlins, as well as Kawasaki, can be held li-able on this claim. Once again, I begin myanalysis of this claim with a summary of[*35] the arguments of the parties.


In its Supplemental (Amended And Substi-tuted) Motion For Summary Judgment(docket no. 71), Ohlins argues that the

Thompsons have no evidence to suggest thatthe design of the SD 1791 steering damperwas defective per se. Ohlins argues that the"design defect" claim is actually directed at

the decision to use the SD-1791 steeringdamper, with lesser dampening force, on the2007 Ninja ZX-10R motorcycle, instead of theSD-1790 steering damper that had been usedon the 2006 Ninja ZX-10R motorcycle. Ohlinsasserts that there is no evidence that it wasinvolved in that decision; rather, it was sim-ply the vendor of an individual component in-corporated into the motorcycle by Kawasaki.Ohlins points out that one of the Thompsons'experts, Mark Ezra, stated that he had nocriticism of Ohlins's design of the SD 1791steering damper itself.

In response, the Thompsons paint a muchdifferent picture, asserting that Ohlins sub-stantially participated in the selection of thesteering damper for the 2007 Ninja ZX-10Rmotorcycle, citing RESTATEMENT (THIRD) 5. Morespecifically, the Thompsons assert thatOhlins offered advice about the appropriate[*36] steering damper for the 2006 Ninja,worked with Kawasaki for over a year on the

steering mechanism for that model, andforced changes to Kawasaki's steering de-sign. They argue that one of their experts,Mr. Higinbotham, has described the relation-ship between Ohlins and Kawasaki as "collab-

orative," and that Kawasaki's own marketingliterature for the 2006 Ninja states that the"racing quality" steering system was devel-oped "in collaboration with Ohlins." The

Thompsons also assert that the SD-1791steering damper was adapted to be used ex-clusively by Kawasaki as the OEM damper forthe Ninja ZX-10R.

In reply, Ohlins argues that, whatever Mr.Higinbotham may have opined, the recordevidence shows that Ohlins did not "substan-tially participate" in the integration of the SD-1791 steering damper into the 2007 Ninja.

2. Component manufacturer liability fora "design defect"

The Eighth Circuit Court of Appeals hasrecognized that, with respect to design de-fects, manufacturers of component partsgenerally are not liable for the design of thefinal product into which their parts are incor-porated. In re Temporomandibular Joint Im-

plants (TMJ) Prods. Liab. Litig., 97 F.3d 1050,1055 (8th Cir. 1996). [*37] The rationale forsuch a rule is that "'[a] component part sup-

plier should not be cast in the role of insurerfor any accident that may arise after thatcomponent part leaves the supplier'shands.'" Id. at 1056 (quoting Crossfield v.Quality Control Equip. Co., 1 F.3d 701, 705(8th Cir. 1993)); see alsoRESTATEMENT (THIRD) 5, cmt. a ("As a general rule, component sell-ers should not be liable when the componentitself is not defective as defined in this Chap-ter. If the component is not itself defective, itwould be unjust and inefficient to impose lia-bility solely on the ground that the manufac-turer of the integrated product utilizes thecomponent in a manner that renders the in-tegrated product defective.").

However, RESTATEMENT (THIRD) 5(b) pro-vides an exception to this rule, as follows:

One engaged in the business ofselling or otherwise distributingproduct components who sells ordistributes a component is sub-

ject to liability for harm to per-


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sons or property caused by aproduct into which the compo-nent is integrated if:

* * *

(b)(1) the seller ordistributor of thecomponent substan-tially participates inthe integration of thecomponent into thedesign of the prod-uct; and

(b)(2) [*38] theintegration of thecomponent causesthe product to be de-

fective, as defined inthis Chapter; and

(b)(3) the defectin the product causesthe harm.

RESTATEMENT (THIRD) 5(b) (emphasis added).The Iowa Supreme Court has not expresslyadopted 5 of the RESTATEMENT (THIRD), al-though it has expressly adopted 1 and 2.

Scott, 774 N.W.2d at 504. Assuming, withoutdeciding, that the Iowa Supreme Court woulddo so, as part of a comprehensive scheme forproducts liability law, I look to the languageof and comments to 5(b) itself and to thedecisions of other courts for guidance on therequirements for liability of a parts manufac-turer for a "design defect" pursuant to 5(b).

Comment e to this section of theRESTATEMENT (THIRD) explains the "substantialparticipation" requirement, as follows:

e. Substantial participation inthe integration of the componentinto the design of another prod-uct. When the component selleris substantially involved in the in-tegration of the component intothe design of the integrated prod-uct, the component seller is sub-

ject to liability when the integra-tion results in a defective product

and the defect causes harm tothe plaintiff. Substantial partici-

pation [*39] can take variousforms. The manufacturer or as-sembler of the integrated prod-

uct may invite the componentseller to design a component thatwill perform specifically as part ofthe integrated product or to as-sist in modifying the design ofthe integrated product to acceptthe seller's component. Or thecomponent seller may play asubstantial role in deciding whichcomponent best serves the re-quirements of the integrated

product. When the componentseller substantially participates in

the design of the integrated prod-uct, it is fair and reasonable tohold the component seller re-sponsible for harm caused by thedefective, integrated product. Acomponent seller who simply de-signs a component to its buyer'sspecifications, and does not sub-stantially participate in the inte-gration of the component intothe design of the product, is notliable within the meaning of Sub-section (b). Moreover, providing

mechanical or technical servicesor advice concerning a compo-nent part does not, by itself, con-stitute substantial participationthat would subject the compo-nent supplier to liability. One whoprovides a design service alone,as distinct from combining thedesign function with the sale of acomponent, [*40] generally is li-able only for negligence and isnot treated as a product seller.See 19(b).

RESTATEMENT (THIRD) 5(b), cmt. e (emphasisadded).

In light of this comment, the UnitedStates District for the District of Minnesota,applying Minnesota law, concluded that rec-ommending a certain specification for apart--in that case, the size of a vent hole for agas pipeline electrofusion unit--"that is not in-


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corporated into the final design cannot serveas the basis for liability" under 5(b), andthat a part manufacturer "cannot be found tohave participated in the design of the [com-ponent] if its design recommendation was

disregarded." Schanhaar v. EF Technologies,Inc., Civil No. 08-5382 ADM/LIB, 2010 U.S.Dist. LEXIS 109709, 2010 WL 4056045, *4 (D.Minn. Oct. 14, 2010); see also Del Signore v.

Asphalt Drum Mixers, 182 F. Supp. 2d 730,745 (concluding, using RESTATEMENT (THIRD) 2and comment e for guidance, that a manu-facturer of certain equipment for a "wet washpond" air cleaning system was not liable onthe basis of "substantial participation" in theintegration of its equipment into the designof the pond, where it only provided sometechnical guidance and advice as to the wa-

ter volume of the pond, its maximum [*41]distance from the plant, and some dimen-sions; the record did not even show whetherthe owner building the pond would have fol-lowed the equipment manufacturer's advice;and the equipment manufacturer had no con-trol over what the owner did with its equip-ment at the owner's complex). Similarly,state courts applying RESTATEMENT(THIRD) 5(b)have required that the component manufac-turer "have had some control over the deci-sion-making process of the final product orsystem" to have "substantially participated"

in the design of the integrated product. Gud-mundson v. Del Ozone, 2010 UT 33, 232 P.3d1059, 1073 (Utah. 2010) (citing cases); seealso Toshiba Int'l Corp. v. Henry, 152 S.W.3d774, 782 (Tex. Ct. App. 2004) (concludingthat "substantial participation" liability for a"design defect" would not lie against a com-ponent manufacturer, inter alia, where thesystem manufacturer was in "total control ofthe design of that system"). Thus, "substan-tial participation" requires more than a com-ponent manufacturer giving technical adviceto the manufacturer of the integrated prod-uct; it requires that the component manufac-turer's advice actually be heeded and thatthe component manufacturer actually have[*42] some control over the design of the in-tegrated product.


It is possible that the Thompsons havegenerated genuine issues of material fact asto whether Ohlins "substantially participated"

in the design of the steering system for the2006 Ninja ZX-10R motorcycle, but the ques-tion is whether there is sufficient evidence togenerate a genuine issue of material fact asto whether Ohlins "substantially participated"

in the design of the steering system for the2007 Ninja ZX-10R motorcycle. The Thomp-sons' assertions notwithstanding, such evi-dence is sorely lacking here.

The Thompsons rely on e-mails fromOhlins engineers to Kawasaki about thechange in the steering damper for the 2007Ninja ZX-10R. See Plaintiffs' Appendix, Ex-hibit 11 (March 30, 2006, e-mail from Bjrk-man at Ohlins to Okabe at Kawasaki stating,"May I ask why you want to reduce damping?We have heard that in some case[s], thebrackets have cracked. With reduced damp-

ing this can be solved. I just want to informyou that many people that are going to race,or just run on track, have bought anotherneedle from our distributors and changed itin the SD. This needle is without bleed hole,so it gives [*43] more damping. As I said, I

just want to inform you, so you know thatsome people do like this."); id. at Exhibit 12(April 11, 2006, e-mail from Okabe atKawasaki to Bjrkman at Ohlins, stating, "Wethink this spec is OK for next year model. Butalso we want to know the tolerance of damp-ing. How do you think this spec's maixmam

[sic] damping of production torelance [sic]?You think tolerance is OK, we go ahead," andBjrkman's response, "OK. It is difficult to saythe tolerance now. We have only tried oneneedle. I will set the diameter tolerance ofthe bleed hole, on the needle drawing, to alittle plus tolerance so the damping is notmuch over this value. I don't think you wantvery much less damping either, because thenthere is almost no function left."); id. at Ex-hibit 10 (May 28, 2006, e-mail from Bjrkmanat Ohlins to Okabe at Kawasaki explainingthat "[t]he best way to reduce maximum

damping I think is to make a new needle withdifferent bleed hole and nose angle. Do youhave the maximum damping value you want?

Then we can make new needles to try andget the right value."); id. at Exhibit 14 (June4, 2007, e-mail from Johnny Brster atOhlins to Mr. Kaiya at Kawasaki, stating,[*44] "One more important information foryou is that many customers with 44071-0412[(SD 1791)] dampers has called and asked


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for steering dampers with more dampingforce. Something we have refused to do sincewe do not want to change KHI specificationlike the 44071-0495 [(SD 1920)] spec. andhlins engineering division do support this

request and we have tested both spec. sev-eral times and the setting we recommend isstill 44071-0495 [(SD 1920)] or 44071-0299. Iask you to reconsider the decision to makethe spec. change again and I really recom-mend KHI to stay with the 44071-0495 [(SD1920)] or 44071-0299 which we think is amore suitable setting for the market."); seealso id. at Exhibit 8 (Deposition of Mr.Macklin,47:11-49:16, 61:25-63:15, concerning thiscorrespondence).

First, at most, the various e-mails fromOhlins's engineers to Kawasaki about the

change in the steering damper for the 2007Ninja ZX-10R, upon which the Thompsonsrely, involve no more than providing mechan-ical or technical advice about the steeringdamper, how dampening levels could bechanged, and the effect of changing dampen-ing levels. SeeRESTATEMENT (THIRD) 5(b), cmt.e ("[P]roviding mechanical or technical [*45]services or advice concerning a componentpart does not, by itself, constitute substantialparticipation that would subject the compo-nent supplier to liability."). Second, those e-mails make clear that Kawasaki, not Ohlins,

had the final say over the design decisions,including the level of dampening. See Gud-mundson, 232 P.3d at 1073; Toshiba Int'lCorp., 152 S.W.3d at 782; Del Signore, 182 F.Supp. 2d at 745. Finally, to the extent thatOhlins made a recommendation aboutwhether or not to reduce dampening--that is,that Kawasaki should not reducedampening--Kawasaki plainly rejected thatadvice. Schanhaar, 2010 U.S. Dist. LEXIS109709, 2010 WL 4056045 at *4. 4

4 The irony is not lost on me of the

Thompsons' reliance on Bjrkman'sApril 11, 2006, e-mail to Okabe stating,"I don't think you want very much lessdamping either, because then there isalmost no function left," to supportboth their contention that Ohlins "sub-stantially participated" in the design ofthe motorcycle, so that Ohlins shouldbe liable for a "design defect," and onKawasaki's rejection of that "warning,"

so that Kawasaki should be liable forpunitive damages for the purported"design defect."

From the evidence in the record cited bythe Thompsons, [*46] viewed in the lightmost favorable to the Thompsons, a rationaltrier of fact could not find that Ohlins "sub-stantially participated" in the integration ofits steering damper into the steering systemof the 2007 Ninja ZX-10R motorcycle. Torger-son, 643 F.3d at 1042-43. Consequently,Ohlins cannot be held liable for a "design de-fect" in the 2007 Ninja ZX-10R motorcycle.See RESTATEMENT (THIRD) 5(b). Ohlins is alsoentitled to summary judgment on this claim.

E. Punitive Damages Claims

The last "claim" still at issue is theThompsons' claim in Count VIII for "punitivedamages" against both Kawasaki and Ohlins.However, for the reasons explained morefully below, I need only consider Kawasaki'schallenge to "punitive damages" on the "de-sign defect" claim. As before, I begin myanalysis of this challenge with a summary ofthe parties' arguments.


Kawasaki argues that the Thompsonshave failed to satisfy the requirement to

prove intentional wrongful conduct that farexceeds the bounds of reasonableness to ob-tain punitive damages against Kawasaki inthis case. Indeed, Kawasaki asserts that ithas not engaged in any improper conduct atall. Kawasaki argues that, because [*47] thisis a product liability case involving a compli-cated product, the Thompsons' claims mustbe based on the reports of their experts and,even taking those reports in the light mostfavorable to the Thompsons, the experts' crit-icisms of Kawasaki do not rise to the level ofconduct warranting punitive damages under

Iowa law.The Thompsons assert that they have, at

the very least, generated genuine issues ofmaterial fact on the requirements for anaward of punitive damages against Kawasaki.Specifically, they point to evidence that Scott

Thompson's motorcycle was defectively de-signed, and that Kawasaki has not assertedotherwise. They also argue that Kawasaki


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Page 17

was more than merely negligent in choosingthe steering damper for the 2007 Ninja ZX-10R motorcycle, meeting the standard for"legal malice," because Kawasaki intention-ally and significantly decreased the dampen-

ing function of the steering damper on the2007 Ninja ZX-10R, as compared to thesteering damper on the 2006 Ninja ZX-10R;Kawasaki knew that the steering damper onthe 2007 Ninja ZX-10R was a "safety device"and an essential component for the stabilityof the motorcycle to prevent uncontrollable"wobble" and other stability [*48] problemsthat caused Scott Thompson's accident;Kawasaki chose to change the steeringdamper, rather than increase the strength ofthe mounting bracket, which would not havehad the same impact on motorcycle stability;

Kawasaki chose to do so, contrary to thewarnings and recommendations of Ohlins'sengineers; and Kawasaki did so over a veryshort time period, as compared to thelengthy period invested in developing thesteering system for the 2006 Ninja ZX-10Rmotorcycle model, without sufficient testingof the new design.

Kawasaki replies that Ohlins did not ques-tion the change in the steering damper basedon safety concerns, but questioned thechange based on the desires of racing cus-tomers. Kawasaki also argues that the

Thompsons' experts' criticisms of the devel-opment and testing process for the newsteering mechanism are legally insufficient tosupport an award of punitive damages.Kawasaki also argues that there is no evi-dence that Kawasaki sold the 2007 Ninja ZX-10R motorcycle with knowledge that it wasunreasonably dangerous or with knowledgeof prior injuries or accidents caused by thesteering damper on that motorcycle. What"customer complaint" evidence the Thomp-sons have [*49] offered, Kawasaki argues, isinadmissible, because the Thompsons have

laid no proper foundation for it, that evidenceis "riddled with hearsay," and, in any event, itis more prejudicial than probative, wherethere is no showing of substantial similarity.

2. Standards for punitive damages un-der Iowa law

Under Iowa law, punitive damages aremerely incidental to the main cause of action

and they are derived from the underlyingcause of action. Campbell v. Van Roekel, 347N.W.2d 406, 410 (Iowa 1984). Thus, punitivedamages can only be awarded when theplaintiff prevails on an underlying cause of

action, then proves the requirements forpunitive damages under Iowa law. See Holtv. Quality Egg, L.L.C., 777 F. Supp. 2d 1160,1172 (N.D. Iowa 2011) (also concluding thatthe plaintiff is not required to prove that "will-ful and wanton conduct" was an element ofthe underlying claim before punitive dam-ages may be awarded). Here, I have nowgranted summary judgment in favor of Ohlinson all of the causes of action against it, and Ihave granted summary judgment in favor ofKawasaki on the "manufacturing defect"cause of action against it. Thus, where the

only underlying cause of action still at [*50]issue is the Thompsons' claim for a "designdefect" against Kawasaki, that is the onlycause of action upon which punitive damagescan be based, if the Thompsons first provethat cause of action. Id.

As the Iowa Supreme Court explained, ina products liability case,

Iowa Code section 668A.1(1)(a)sets the standard for an award ofpunitive damages. Under thissection, an award of punitive

damages will stand when there isproof of conduct that establishesa "willful and wanton disregardfor the rights or safety of an-other." Wilson v. IBP, Inc., 558N.W.2d 132, 142 (Iowa 1996) (cit-ing Iowa Code 668A.1(1)(a)).We have approved the followingdefinition of "willful and wanton"conduct for section 668A.1(1)purposes:

[T]he actor has in-

tentionally done anact of an unreason-able character in dis-regard of a known orobvious risk that wasso great as to make ithighly probable thatharm would follow,and which thus isusually accompanied


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by a conscious indif-ference to the conse-quences.

Fell [v. Kewanee Farm Equip.Co.], 457 N.W.2d [911,] 919[(Iowa 1990)] (quoting W. PageKeeton, et al., Prosser & Keetonon the Law of Torts 34, at 213(5th ed.1984)). The evidence tosupport an award must be clear,[*51] convincing and satisfactory.Iowa Code 668A.1(1)(a).

We have noted that punitivedamages serve "'as a form ofpunishment and to deter others

from conduct which is sufficientlyegregious to call for theremedy.'" McClure [v. WalgreeCo.], 613 N.W.2d [225,] 230[(Iowa 2000)] (quoting Coster v.Crookham, 468 N.W.2d 802, 810(Iowa 1991)). Consequently,punitive damages are appropri-ate only when actual or legalmalice is shown. Schultz v. Secu-rity Nat'l Bank, 583 N.W.2d 886,888 (Iowa 1998). Mere negligentconduct is therefore not sufficient

to support a claim for punitivedamages. Beeman v. ManvilleCorp. Asbestos Disease Compen-sation Fund, 496 N.W.2d 247,256 (Iowa 1993).

Mercer v. Pittway Corp., 616 N.W.2d 602,617 (Iowa 2000). I have concluded that "puni-tive damages must be based on evidencethat relates to the underlying cause ofaction," because IOWA CODE 668A.1 re-quires that punitive damages be based onsufficient proof that "'the conduct of the de-fendant from which the claim arose consti-tuted willful and wanton disregard for therights or safety of another.'" Holt, 777 F.Supp. 2d at 1173 (quoting IOWA CODE 668A.1).

As to the "malice" requirement, the IowaSupreme Court has also [*52] explained,

Actual malice is characterized

by such factors as personal spite,hatred, or ill will. [Schultz, 583N.W.2d at 888.] Legal malice isshown by wrongful conduct com-mitted or continued with a willful

or reckless disregard for an-other's rights. Id.

McClure, 613 N.W.2d at 231. The Thompsonshave not asserted that there is any evidenceshowing that Kawasaki acted with "actualmalice," so their punitive damages claimmust be based on an assertion that Kawasakiacted with "legal malice" in selling the 2007Ninja ZX-10R motorcycle with a "design de-fect." See Mercer, 616 N.W.2d at 617 (ex-plaining that, under Iowa law, "punitive dam-

ages are appropriate only when actual or le-gal malice is shown"); McClure, 613 N.W.2dat 231 (defining "actual malice" and "legalmalice").

Attempting to put more meat on thebones of what "legal malice" means, I notethat, in Mercer, the Iowa Supreme Court re-

jected a punitive damages claim, becausethe evidence showed only a reasonable dis-agreement over the risks and utility of theproduct as designed, even where the manu-facturer was aware of complaints or prob-lems with the product, and allegedly failed to

test the product adequately in "real world"circumstances. [*53] See Mercer, 616N.W.2d at 618. I have observed that evi-dence of "'disregard of a known or obviousrisk that was so great as to make it highlyprobable that harm would follow'" would sup-port punitive damages, Holt, 777 F. Supp. 2dat 1173 (quoting Mercer, 616 N.W.2d at 617),and that such evidence "includes '"evidenceof [a] defendant's persistent course of con-duct to show that the defendant acted withno care and with disregard of the conse-quences of those act.'" Id. (quoting Wolf v.

Wolf, 690 N.W.2d 887, 893 (Iowa 2005), inturn quoting Hockenberg Equip. Co. v. Hock-enberg's Equip. & Supply Co., 510 N.W.2d153, 156 (Iowa 1993)). More specifically still,I concluded that evidence that the defendanthad notice of problems and ignored that no-tice may support a conclusion that the defen-dant took a persistent course with no careand with disregard of the consequences. Id.at 1173-74 (citing cases). I have required,


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however, that the notice of problems be suffi-ciently close in time and circumstances to beinformative of the willfulness and wantonnessof the conduct from which the claim arose.Id. at 1174.


Kawasaki has specifically admitted thatthe steering [*54] damper is a "safety de-vice" equipped on a motorcycle for the pur-pose of minimizing kickback and bringingabout faster convergence. See Kawasaki'sResponse To Plaintiffs' Statement Of Addi-tional Material Facts In Opposition To TheKawasaki Defendants' Motion For Summary

Judgment (docket no. 75), 7. Thus,Kawasaki was necessarily aware thatchanges to the steering damper had poten-

tial safety consequences.

I have rejected the Thompsons's con-tention that e-mails from Ohlins to Kawasakiabout Kawasaki's decision to reduce thedampening force in the steering damper forthe 2007 Ninja ZX-10R model motorcycledemonstrate that Ohlins was a "substantialparticipant" in the design of the steeringmechanism for that model. However, thequestion here is quite different, as to rele-vance of Ohlins's e-mails to a punitive dam-ages claim against Kawasaki. On that ques-

tion, I do believe that this evidence gener-ates genuine issues of material fact thatKawasaki had notice of potential problemswith reducing the dampening level--even ifOhlins couched its comments in terms ofthere being almost no dampening at all, notspecifically in terms of a "safety" problem--and that Kawasaki then ignored those poten-tial [*55] problems. This evidence wouldwarrant a reasonable juror concluding thatKawasaki took a persistent course to reducethe dampening level of the steering mecha-nism with no care and with disregard of thesafety consequences. Id. at 1173-74 (citingcases concerning the relevance of evidenceshowing that the defendant acted with nocare and with disregard of the safety conse-quences); Torgerson, 643 F.3d at 1042-43(stating the "rational trier of fact" or "reason-able juror" standard for summary judgment).Such evidence is plainly sufficiently close intime to Kawasaki's design decisions to be in-formative of whether or not Kawasaki acted

willfully and wantonly in taking the actionsfrom which the "design defect" claim arose.Id. at 1174.

Additional evidence reasonably support-ing a prayer for "punitive damages" in light ofthe conduct from which the "design defect"claim arose is evidence that Kawasaki madethe decision to change the steering damper,admittedly a "safety device," for the 2007Ninja ZX-10R motorcycle within a compara-tively short time, with very limited testing,and no evidence of recognition of the safetyconsequences of the change, when con-trasted with the extensive testing [*56] anddevelopment that led to the use of the steer-ing damper with a much higher dampeninglevel for the 2006 Ninja ZX-10R. In this case,this evidence could lead a reasonable juror to

conclude that the decision was made with nocare and with disregard of the safety conse-quences. Id. at 1173-74; Torgerson, 643 F.3dat 1042-43 (stating the "rational trier of fact"or "reasonable juror" standard for summary

judgment); and compare Mercer, 616 N.W.2dat 618 (finding no jury question based on al-leged failure to test the product in "realworld" circumstances, because the evidencefrom both parties concerning the testingshowed only a reasonable disagreement overthe relative risks and utilities of the defen-dant's conduct in the manufacture and pro-

duction of the allegedly defective product).

Although I might not award punitive dam-ages on the present record, that is not thequestion on a motion for summary judgment.From the evidence in the record cited by the

Thompsons, viewed in the light most favor-able to the Thompsons, a rational trier of factcould find that Kawasaki acted "willfully andwantonly" in designing the steering system ofthe 2007 Ninja ZX-10R motorcycle, Torger-son, 643 F.3d at 1042-43, [*57] so that puni-tive damages based on the conduct fromwhich the "design defect" claim arose maybe appropriate. See Holt, 777 F. Supp. 2d at1173 (citing IOWA CODE 668A.1 as requir-ing that punitive damages be based on theconduct from which the underlying cause ofaction arose). Consequently, Kawasaki is notentitled to summary judgment on the Thomp-sons' prayer for punitive damages on the"design defect" claim against it.


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III. CONCLUSION

Upon the foregoing,

1. KHI's and KMC's November 5, 2012,joint Motion For Partial Summary Judgment

(docket no. 64) is granted in part and de-nied in part, as follows:

a. The Motion is granted as tothe "manufacturing defect" claimin Count I, the "breach of im-plied warranty of fitness for aparticular purpose" claim inCount II, and the "negligence"claim in Count III, but

b. The motion is denied as tothe "design defect" claim inCount I, and the prayer of "puni-

tive damages" on that underlyingcause of action in Count VIII.

2. Ohlins's November 27, 2011, Supple-mental (Amended And Substituted) MotionFor Summary Judgment (docket no. 71) isgranted in its entirety, and Ohlins is dis-missed from this action.

3. This action will proceed to trial onlyonthe "design [*58] defect" claim against KHIand KMC in Count I and the prayer for "puni-tive damages" on that underlying cause ofaction in Count VIII.

IT IS SO ORDERED.

DATED this 11th day of February, 2013.

/s/ Mark W. Bennett

MARK W. BENNETT

U.S. DISTRICT COURT JUDGE

NORTHERN DISTRICT OF IOWA


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KingCast Motorsports -- Estate of Thompson v. Kawasaki Heavy Indus., 2013 U.S. Dist. LEXIS 17796

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Transcript of KingCast Motorsports -- Estate of Thompson v. Kawasaki Heavy Indus., 2013 U.S. Dist. LEXIS 17796